June 2013 Vol. 111 No. 8 THE REVIEW

Statutory Interdependence in Severability Analysis

Rachel J. Ezzell

According to conventional wisdom, when a court rules a statutory provision unconstitutional, it must sever that provision or strike down the entire statute. This understanding is incomplete. In practice, courts may engage in compound severance: invalidating additional, otherwise constitutional provisions of the statute without striking down the entire statute. They reason that the degree of interrelation between those provisions is so significant that severance of one compels severance of the other. As a result, a subset of the statute remains law. The power to craft such subsets raises constitutional concerns, and yet the jurisprudence concerning statutory interdependence is inconsistent and unclear.

Courts analyze provisions for interdependence in three distinct ways: by divining congressional purpose, speculating the terms of the legislative bargain, and searching for textual evidence of congressional intent. Greater predictability in this area would alleviate constitutional concerns and better ensure democratic accountability. This Note argues for adoption of a "qualified clear statement rule" in which courts only find related provisions interdependent either when Congress has provided a clear statement to that effect or when allowing a related provision to have effect would result in an objectively irrational law. It then applies this rule to resolve a circuit split concerning severability of the Food and Drug Modernization Act. The qualified clear statement rule not only is consistent with the Court's severability test but also would provide better guidance to courts evaluating provisions for statutory interdependence as well as limit instances of judicial overreach.

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